Lake Jackson Medical Spa, Ltd., Robert Yarish, and Jamie Gutzman v. Erika Gaytan

Supreme Court of Texas
══════════
No. 20-0802
══════════

Lake Jackson Medical Spa, Ltd., Robert Yarish, M.D., and Jamie
Gutzman,
Petitioners,

v.

Erika Gaytan,
Respondent

═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Fourteenth District of Texas
═══════════════════════════════════════

Argued October 26, 2021

JUSTICE BOYD delivered the opinion of the Court.

The plaintiff in this case alleges that the defendants negligently

administered various treatments that caused scarring and discoloration

to her skin. The primary issue is whether her claims constitute “health

care liability claims” under the Texas Medical Liability Act. A

preliminary issue is whether the Act prohibited the plaintiff from filing

an amended petition after the Act’s deadline for serving expert reports.
We hold that the Act did not prohibit the plaintiff from filing an

amended petition and that her claims constitute health care liability

claims. Because the plaintiff failed to timely serve an expert report, the

Act requires that her claims be dismissed. We reverse the court of

appeals’ judgment and remand the case to the trial court for an award

of attorney’s fees, as the Act requires.

I.
Background

Erika Gaytan sued Lake Jackson Medical Spa, Ltd., its employee,

aesthetician Jamie Gutzman, and its owner, Dr. Robert Yarish,

complaining that Gutzman negligently performed various skin

treatments that caused scarring and discoloration. Gaytan originally

sued only the Medical Spa and Gutzman, expressly asserting claims for

“medical negligence” involving an “improper and negligent course of

medical treatment.” She later added Dr. Yarish as a defendant in her

first amended petition, alleging he negligently allowed Gutzman to

administer the “medical treatments” even though he knew or should

have known they were “improper and would cause physical harm.”

In their original and first-amended answers, the defendants

moved to limit discovery because Gaytan had not yet served them with

2
an expert report as the Texas Medical Liability Act requires. See TEX.

CIV. PRAC. & REM. CODE § 74.351(a), (s) (limiting discovery until

claimant serves an expert report). Five months later, the defendants

moved to dismiss Gaytan’s claims because she still had not served an

expert report. See id. § 74.351(b) (requiring dismissal with prejudice and

attorney’s-fees award if claimant fails to serve an expert report within

120 days after each defendant files an original answer).

Gaytan filed a response to the defendants’ dismissal motion,

arguing that the Act does not apply (and thus did not require her to

serve an expert report) because she is not asserting a “health care

liability claim” against any of the defendants. Instead, she argued, she

complains only about “cosmetic skin treatments” she received “purely

for aesthetic reasons.” To support her response, Gaytan attached an

affidavit in which she testified that she was not referred to the Medical

Spa by a medical doctor, she sought only “cosmetic treatment” for acne

and not to address any “disease, disorder or injury,” she does not recall

completing any medical-history or patient-consent forms, she never saw

or consulted with Dr. Yarish, Dr. Yarish never examined or treated her,

and the skin cream Gutzman applied was not a prescription medication.

3
 Consistent with her response, Gaytan filed a second-amended

petition the day before the hearing on the defendants’ dismissal motion,

in which she omitted all references to the Act and to “medical”

treatments or negligence. Specifically, where

 she initially alleged she had given pre-suit notice
“[p]ursuant to” the Medical Liability Act, she now
omitted any reference to the Act;

 she initially alleged an “improper and negligent
course of medical treatment,” she now alleged an
“improper and negligent course of cosmetic
treatment”;

 she initially alleged the Medical Spa “is in the
business of providing surgical and non-surgical
medical treatment to its patients,” she now alleged it
“is in the business of providing surgical and non-
surgical cosmetic improvements to its patrons
seeking such cosmetic improvements”;

 she initially alleged she “was a patient at
Defendant’s medical spa,” she now alleged she “was
a patron at” the Medical Spa;

 she initially alleged she “underwent a course of
medical treatment,” she now alleged she “underwent
a course of cosmetic treatment”;

 she initially alleged she sustained scarring and
darkening “as a result of the negligent medical
treatments,” she now omitted that phrase
completely;

 she initially alleged she “was under Ms. Gutzman’s
care” to resolve skin conditions, she now alleged she

4
 “was visiting Ms. Gutzman” to resolve those
conditions;

 she initially asserted a claim for “Medical
Negligence,” she now asserted a claim for ordinary
“Negligence”;

 she initially alleged the Medical Spa is “in the
business of providing health care,” she now alleged
it is “in the business of providing cosmetic services”;

 she initially alleged the Medical Spa “owed [Gaytan]
a duty of care as its patient,” she now alleged it
“owed [Gaytan] a duty of care as its customer”; and

 she initially sought damages “for medical
malpractice,” she now omitted that reference
completely. [Emphases added.]

Several key facts Gaytan asserted in support of her claims and

allegations, however, remained consistent in each of her petitions and

in her affidavit. Specifically, as in her earlier petitions, she still alleged

in her second-amended petition and in her affidavit that Dr. Yarish “is

a medical physician who owns and operates” the Medical Spa; the

“treatments” Gaytan received “included L.J. acne treatment, L.J. skin

pen, L.J. phototherapy acne treatment, skin pen spot treatment,

microdermabrasion, and L.J. VI peel treatment for areas on her face and

back”; those treatments “left [Gaytan] with scarring and darkening on

her back and face”; and the defendants’ actions “fell below the applicable

5
standard” of care. Regarding specific breaches of the standard of care,

Gaytan alleged—as she had in her earlier petitions—that the

defendants:

a. failed “to properly evaluate [Gaytan’s] skin condition and
tailor cosmetic[1] treatments pursuant to established
standards of dermatological care”;

b. failed “to properly assess, document, and/or request
[Gaytan’s] medical history, including medications [Gaytan]
was using at the time of the cosmetic[2] treatments”;

c. performed “abrasive dermatological treatment such as VI
peel on [Gaytan] while [Gaytan] was actively using a
tretinoin cream”;

d. failed “to properly instruct [Gaytan] to suspend use of
tretinoin cream in anticipation of abrasive dermatological
treatment such as VI peel”;

e. recommended and prescribed “laser treatment without
determining its effect on [Gaytan’s] ethnic skin”;

f. failed “to properly prepare [Gaytan’s] ethnic skin to safely
accept laser treatment”;

g. failed “to properly adjust laser treatment to be safely
applied to [Gaytan’s] ethnic skin;” and

h. failed “to properly supervise and evaluate Ms. Gutzman’s
cosmetic treatments of [Gaytan’s] skin conditions.”

1The word “cosmetic” did not appear here in the original and first-
amended petitions.

2The word “cosmetic” did not appear here in the original and first-
amended petitions.

6
Regarding the Medical Spa and Dr. Yarish specifically, Gaytan also

alleged that they failed to “use ordinary care in hiring, training and

retaining” Gutzman.

The trial court denied the defendants’ dismissal motion, and the

defendants took an interlocutory appeal. See TEX. CIV. PRAC. & REM.

CODE § 51.014(a)(9) (authorizing interlocutory appeal from order

denying dismissal under section 74.351(b)). The court of appeals

affirmed, 627 S.W.3d 350 (Tex. App.—Houston [14th Dist.] 2020), and

we granted the defendants’ petition for review.

II.
Health Care Liability Claims

The Texas Medical Liability Act requires a claimant who asserts

a “health care liability claim” against a “physician or health care

provider” to serve on each defendant one or more expert reports

describing the expert’s opinions addressing the applicable standards of

care, how the defendant’s conduct failed to meet those standards, and

how those failures caused the claimant’s injury, harm, or damages. TEX.

CIV. PRAC. & REM. CODE § 74.351(a), (r)(6). If a claimant fails to serve

the report within 120 days after the defendant files an original answer,

the trial court must dismiss the claim with prejudice and award the

7
defendant attorney’s fees and costs. Id. § 74.351(b). Gaytan concedes she

never served an expert report on any of the defendants in this case, but

she argues the Act’s requirements do not apply because she did not

assert a “health care liability claim.”

Whether a pleading asserts a health care liability claim presents

a question of law courts review de novo. Baylor Scott & White, Hillcrest

Med. Ctr. v. Weems, 575 S.W.3d 357, 363 (Tex. 2019). To answer that

question, we must focus on the claim’s “underlying nature . . . rather

than its label.” Id. To determine the claim’s underlying nature, we must

consider the “entire court record,” including “the pleadings, motions and

responses, and relevant evidence properly admitted.” Loaisiga v. Cerda,

379 S.W.3d 248, 258 (Tex. 2012).

The defendants argue here, however, that the pleadings the trial

court could consider did not include Gaytan’s second-amended petition

because she filed it after the statute’s 120-day deadline for serving an

expert report. So we must first determine which amended petition the

trial court should have considered and then decide whether Gaytan

asserted a health care liability claim.

8
 III.
The Relevant Petition

Although Gaytan acknowledges that her first two petitions

expressly asserted health care liability claims, she urged the trial court

to deny the defendants’ dismissal motion because she “filed a Second

Amended Petition which properly sets forth the nature of her claims.”

The defendants urged the court to consider only her first-amended

petition—the live pleading when the 120-day expert-report deadline

passed—because “a health care liability claim cannot be recast as

another cause of action in an attempt to avoid the expert report

requirement.” The trial court denied the dismissal motion without

indicating which petition it considered. The court of appeals concluded

it was proper to “focus on Gaytan’s second amended petition” because

courts must “focus on the underlying nature of the cause of action and

are not bound by the pleadings.” 627 S.W.3d at 350 (citing Diversicare

Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 847 (Tex. 2005)). For several

reasons, we agree with the court of appeals’ resolution of this issue of

first impression.

First, the Act’s 120-day deadline expressly applies only to the

serving of an expert report, and not to the filing of amended pleadings.

9
The defendants argue that the 120-day deadline prevents a claimant

from amending pleadings because the Act requires the court to dismiss

the claims if the claimant has not served an expert report by that date.

According to the defendants, their statutory right to dismissal is fixed

when the deadline passes, so any amended pleading filed after the

deadline is irrelevant.

The question here, however, is not whether Gaytan failed to serve

an expert report by the deadline, but whether the report requirement

and deadline apply to her claims at all. Whether they apply depends on

whether Gaytan asserted a “health care liability claim.” TEX. CIV. PRAC.

& REM. CODE § 74.351(a). If she didn’t, the 120-day deadline is

irrelevant; if she did, the deadline required her to timely serve an expert

report. But the deadline does not govern the determination of whether

she asserted a health care liability claim and thus the determination of

whether the deadline applies.

Second, nothing else in the Act addresses pleading amendments

one way or the other. The Act says nothing about whether or when a

claimant can amend her pleadings, either before or after the 120-day

deadline. Our rules generally permit parties to freely amend their

pleadings, so long as doing so does not “operate as a surprise to the

10
opposite party.” TEX. R. CIV. P. 63. Although the Act controls over any

rule that conflicts with the Act’s provisions, see TEX. CIV. PRAC. & REM.

CODE § 74.002, rule 63 does not conflict with any of the Act’s provisions.

Because the defendants have not asserted that Gaytan’s second-

amended petition “operated as a surprise” to them, neither the Act nor

our rules prohibited Gaytan from amending her petition in response to

the defendants’ dismissal motion. 3

Third, the trial court’s consideration of an amended pleading

properly filed in response to a dismissal motion is consistent with the

basis on which the court must determine whether the claimant has

asserted a health care liability claim. In our numerous opinions

addressing how courts must make that determination, we have

repeatedly explained that they must consider “the underlying nature of

the plaintiff’s claim rather than its label” and that parties cannot alter

3 See, e.g., CHCA Woman’s Hosp., L.P. v. Lidji, 403 S.W.3d 228, 233
(Tex. 2013) (holding that a claimant’s nonsuit of a health care liability claim
before the 120-day deadline tolls the deadline until suit is refiled because the
Act “neither expressly allows nor expressly prohibits tolling” and “construing
the expert-report requirement to prohibit tolling in the event of a nonsuit
would interfere with [the claimant’s] absolute right to nonsuit the claims”).

11
that nature “through artful pleading.” Weems, 575 S.W.3d at 363. 4 In

fact, courts making that determination are “not bound by the pleadings,”

Bioderm Skin Care, LLC v. Sok, 426 S.W.3d 753, 758 (Tex. 2014), and

instead must determine the claim’s true “underlying nature” by

considering the “entire court record,” including “the pleadings, motions

and responses, and relevant evidence properly admitted.” Loaisiga, 379

S.W.3d at 258. Whether a claim constitutes a health care liability claim

depends on “the facts underlying the claim, not the form of, or artfully-

phrased language in, the plaintiff’s pleadings describing the facts or

legal theories asserted.” Id. at 255. As a result, claims “premised on facts

4 See also Rogers v. Bagley, 623 S.W.3d 343, 350 (Tex. 2021) (“[W]hen
considering whether claims are [health care liability claims], we focus not on
how the plaintiff pleaded or labeled his claims but, rather, on whether the facts
underlying the claim could support [a health care liability claim].”); Tex. W.
Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 176 (Tex. 2012) (“Causes of action
that are [health care liability claims] cannot be transmuted to avoid the
strictures of the medical liability statute.”); Yamada v. Friend, 335 S.W.3d 192,
196 (Tex. 2010) (“Whether a claim is a health care liability claim depends on
the underlying nature of the claim being made. . . . Artful pleading does not
alter that nature.”); Marks v. St. Luke’s Episcopal Hosp., 319 S.W.3d 658, 664
(Tex. 2010) (“[I]t is the gravamen of the claim, not the form of the pleadings,
that controls this determination.”); Diversicare, 185 S.W.3d at 847 (“To
determine whether a cause of action is a health care liability claim . . . , we
examine the underlying nature of the claim and are not bound by the form of
the pleading.”); Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 543 (Tex. 2004)
(“Plaintiffs cannot use artful pleading to avoid the [Act’s] requirements when
the essence of the suit is a health care liability claim. . . . To determine whether
a cause of action falls under the [Act’s] definition of a ‘health care liability
claim,’ we examine the claim’s underlying nature.”).

12
that could support claims” that qualify as health care liability claims are

health care liability claims, regardless of the pleading’s specific

allegations. Id.

Logic would dictate that the opposite must also be true: Just as a

claimant cannot avoid the Act’s application by artfully pleading claims

for ordinary negligence or premises liability, she cannot activate the

Act’s application by inartfully pleading claims for “medical negligence.”

In both circumstances, the Act’s application depends not on the labels

contained within the pleading but on the facts revealing the claim’s

underlying nature, as found within the entire record. When those facts

demonstrate that the claims fall within the Act’s definition of a health

care liability claim, the claimant cannot avoid the Act by “splitting

claims into both health care liability claims and other types of claims

such as ordinary negligence claims,” Yamada, 335 S.W.3d at 193–94, 5

5 See also Loaisiga, 379 S.W.3d at 255 (“[A] claim based on one set of
facts cannot be spliced or divided into both [a health care liability claim] and
another type of claim.”); Lindsey v. Adler, No. 05–12–00010–CV, 2013 WL
1456633, at *3–4 (Tex. App.—Dallas Apr. 9, 2013, no pet.) (mem. op.) (“Because
[claimant’s] second amended petition asserting assault and intentional
infliction of emotional distress claims . . . is based on the same facts as the
health care liability claims asserted in her original and first amended petitions,
the record before us reflects the type of claim splitting expressly prohibited by
Yamada.”); Med. Ctr. of Lewisville v. Slayton, 335 S.W.3d 382, 385–86 (Tex.
App.—Fort Worth 2011, no pet.) (holding amended petition asserting a

13
or by amending her pleading to “recast” her claims, Marks, 319 S.W.3d

at 365–66. But when the facts demonstrate that the claim’s underlying

nature does not fall within the Act’s definition, a pleading that

incorrectly labels the claim as a health care liability claim is no more

controlling than one that incorrectly avoids that label.

The defendants assert, however, that Gaytan’s allegations in her

original and first-amended petitions constitute judicial admissions that

her claims are health care liability claims. A clear, deliberate, and

unequivocal factual allegation made in a live pleading and not pleaded

in the alternative constitutes a judicial admission that conclusively

establishes the fact and bars the pleader from disputing it.

Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 905 (Tex. 2000);

Hous. First Am. Sav. v. Musick, 650 S.W.2d 764, 767 (Tex. 1983). But

allegations contained in a pleading that is superseded by an amended

pleading are not “conclusive and indisputable judicial admissions.”

Sosav. Cent. Power & Light, 909 S.W.2d 893, 895 (Tex. 1995). We need

not decide here whether and how a claimant may judicially admit that

a claim is a health care liability claim because, even if Gaytan’s prior

premises liability claim “reflects the type of claim splitting expressly
prohibited by Yamada” when the claim was based on the same facts as the
health care liability claim asserted in the original petition).

14
petitions contained such an admission, her second-amended petition did

not.

Finally, the Act’s dismissal process justifies the trial court’s

consideration of amended pleadings. The Act requires courts to dismiss

health care liability claims only “on the motion of the affected physician

or health care provider.” TEX. CIV. PRAC. & REM. CODE § 74.351(b).

Although the Act does not expressly mention it, the defendants do not

dispute that the claimant must be afforded an opportunity to respond to

such a motion. 6 The defendants do not contend, for example, that the

trial court should not have considered the response and affidavit Gaytan

filed to contest their dismissal motion, even though she also filed those

documents after the 120-day deadline. Because the trial court’s task at

that point was to determine from the entire record the underlying

nature of Gaytan’s claims, we see no basis on which to hold that the

court could consider those filings but not an amended petition in which

Gaytan sought to clarify the nature of her claims. In fact, trial courts

generally must allow claimants the opportunity to amend their

pleadings before dismissing their claims unless “the petition

6 See Univ. of Tex. Med. Sch. at Hous. v. Than, 901 S.W.2d 926, 930
(Tex. 1995) (“Due process at a minimum requires notice and an opportunity to
be heard at a meaningful time and in a meaningful manner.”).

15
affirmatively demonstrates that no cause of action exists or that

plaintiff’s recovery is barred.” Peek v. Equip. Serv. Co. of San Antonio,

779 S.W.2d 802, 805 (Tex. 1989).

For these reasons, we hold that the Act does not prohibit trial

courts from considering an amended petition filed in response to a

dismissal motion under section 74.351. Except when our procedural

rules prohibit such a filing, courts deciding a section 74.351 dismissal

motion should consider an amended petition when determining the

claims’ underlying nature. Although an amended petition cannot

prevent dismissal merely by “recasting” the claims through the artful

use of different labels, Diversicare, 185 S.W.3d at 851, it nevertheless

comprises part of the “entire court record” courts should consider when

making that determination.

IV.
The Underlying Nature of Gaytan’s Claims

We now turn to the question of whether Gaytan asserted health

care liability claims in this case. As explained, we do so by considering

the entire record, which includes Gaytan’s second-amended petition, 7

7 We do not consider Gaytan’s original or first-amended petitions
because her second-amended petition superseded the prior petitions. See TEX.
R. CIV. P. 65; Bos v. Smith, 556 S.W.3d 293, 306 (Tex. 2018) (“Amended

16
the defendants’ dismissal motion, Gaytan’s response and affidavit, and

all other “relevant evidence properly admitted.” Loaisiga, 379 S.W.3d at

258. Based on the claims’ underlying nature as revealed in this record,

we agree with the defendants that Gaytan asserts health care liability

claims.

The Act defines the phrase “health care liability claim” to mean

a cause of action against a health care provider or
physician for treatment, lack of treatment, or other claimed
departure from accepted standards of medical care, or
health care, or safety or professional or administrative
services directly related to health care, which proximately
results in injury to or death of a claimant, whether the
claimant’s claim or cause of action sounds in tort or
contract.

TEX. CIV. PRAC. & REM. CODE § 74.001(a)(13). As we have repeatedly

observed, this definition includes three basic elements: (1) the defendant

must be a physician or health care provider; (2) the claim must concern

“treatment, lack of treatment, or a departure from accepted standards

of medical care, or health care, or safety or professional or

administrative services directly related to health care”; and (3) the

pleadings supersede prior pleadings, and any claim not carried forward in an
amended pleading is deemed dismissed.”); FKM P’ship, Ltd. v. Bd. of Regents
of Univ. of Hous. Sys., 255 S.W.3d 619, 633 (Tex. 2008) (“[A]mended pleadings
and their contents take the place of prior pleadings.”).

17
defendant’s conduct must proximately cause the claimant’s injury or

death. Tex. W. Oaks, 371 S.W.3d at 179–80. 8

The third element is not at issue here, as Gaytan alleges that the

defendants’ conduct caused her injury. Regarding the first element, the

Act defines “physician” to mean “an individual licensed to practice

medicine in this state,” TEX. CIV. PRAC. & REM. CODE § 74.001(a)(23),

and defines “health care provider” to include both an “affiliate of a health

care provider or physician” and an “employee . . . of a health care

provider or physician acting in the course and scope of the employment,”

id. § 74.001(a)(12). Gaytan alleges and concedes that Dr. Yarish is a

physician. She also alleges that Dr. Yarish “owns and operates” the

Medical Spa and that Gutzman was acting within the scope of her

employment with Dr. Yarish or the Medical Spa when she treated

Gaytan. Under these facts, the Medical Spa (as an affiliate9 of Dr.

Yarish) and Gutzman (as an employee of Dr. Yarish or the Medical Spa)

8See also Rogers, 623 S.W.3d at 349; Bioderm, 426 S.W.3d at 758;
Loaisiga, 379 S.W.3d at 255; Marks, 319 S.W.3d at 664.

9See TEX. CIV. PRAC. & REM. CODE § 74.001(a)(1) (defining “affiliate” to
include an entity that is “directly or indirectly . . . controlled by . . . a specified
person”), (3) (defining “control” to mean “the possession of the power to direct
the management and policies of the person”); Bioderm, 426 S.W.3d at 758
(“Because Bioderm is an affiliate of a physician, we conclude it is a health care
provider under the Medical Liability Act.”).

18
are both health care providers. 10 The record thus establishes the first

element of a health care liability claim.

As in most disputes over whether a claim constitutes a health care

liability claim, the primary issue here involves the second element—

whether Gaytan’s claims concern “treatment, lack of treatment, or a

departure from accepted standards of medical care, or health care, or

safety or professional or administrative services directly related to

health care.” Id. § 74.001(a)(13). The defendants contend that this

element is satisfied because Gaytan’s claims allege that the defendants

violated accepted standards of “medical care” and “health care.” 11 We

agree.

The Act defines “health care” to mean “any act or treatment

performed or furnished, or that should have been performed or

The court of appeals’ opinion is less than clear on this point. It first
10

noted that the parties dispute “whether Gutzman is a health care provider,”
627 S.W.3d at 350–51, and later concluded that “Gaytan did not meet with,
see, or agree to be treated by a physician or health care provider,” id. at 352.
But Gaytan did meet with, see, and agree to be treated by Gutzman, an
employee of the Medical Spa, and the court never explained why Gutzman or
the Medical Spa would not qualify as health care providers under the Act’s
definitions. To the extent the court of appeals concluded that Gutzman and the
Medical Spa are not health care providers, we disagree.

The defendants do not rely on the definition’s “safety or professional
11

or administrative services” clause.

19
furnished, by any health care provider for, to, or on behalf of a patient

during the patient’s medical care, treatment, or confinement.” Id.

§ 74.001(a)(10) (emphases added). Gaytan complains of treatment

Gutzman (a health care provider) furnished to Gaytan. At issue,

however, is whether Gaytan was a “patient” and whether Gutzman

performed the acts as part of Gaytan’s “medical” care or treatment. The

Act defines “medical care” to mean “any act defined as practicing

medicine under Section 151.002, Occupations Code, performed or

furnished, or which should have been performed, by one licensed to

practice medicine in this state for, to, or on behalf of a patient during

the patient’s care, treatment, or confinement.” Id. § 74.002(a)(19). 12

Reading the definitions of “health care” and “medical care”

together clarifies that physicians provide “medical care” and health care

providers provide “health care.” See Marks, 319 S.W.3d at 662. But

health care providers provide health care only when they furnish

12 The Act does not define the term “treatment.” We have previously
acknowledged its meaning within the medical context to refer to “the care and
management of a patient to combat, ameliorate, or prevent a disease, disorder,
or injury.” Bioderm, 426 S.W.3d at 757 n.5 (quoting MOSBY’S MEDICAL
DICTIONARY 1880 (8th ed. 2009)). Gaytan acknowledges and alleges that
Gutzman “treated” her at the Medical Spa and that her claims arise from a
course of “treatment,” but argues that she received only “cosmetic” treatment,
as opposed to “medical” treatment.

20
treatment to a patient “during”—or as part of—a physician’s provision

of “medical care.” TEX. CIV. PRAC. & REM. CODE § 74.001(a)(10). So for

Gaytan’s claims to assert departures from accepted standards of “health

care,” the record must establish that Gutzman treated Gaytan pursuant

to a physician-patient relationship between Gaytan and Dr. Yarish, 13

and that Gutzman provided those treatments during Gaytan’s medical

care, treatment, or confinement. We conclude based on this record that

both requirements are met.

A. Physician-patient relationship

Gaytan argues, and the court of appeals agreed, that the record

establishes that she was never a patient of Dr. Yarish. See 627 S.W.3d

at 351. To reach this conclusion, they both rely on Gaytan’s affidavit, in

which she testified that she never saw or consulted with Dr. Yarish, Dr.

Yarish never examined or treated her, and she does not recall providing

any medical-history or patient-consent forms. According to the court of

appeals, the defendants “presented no evidence to the contrary,” so

13 See Tex. W. Oaks, 371 S.W.3d at 178–81 (explaining that unlike a
claim alleging breach of safety, professional-services, or administrative-
services standards, a claim alleging breach of health-care or medical-care
standards “must involve a patient-physician relationship”).

21
Gaytan’s testimony conclusively negated the existence of any physician-

patient relationship. 627 S.W.3d at 351–52. We disagree.

Generally, a physician-patient relationship arises when a

physician agrees to provide professional medical services to a patient

and the patient agrees to accept the physician’s services. See St. John v.

Pope, 901 S.W.2d 420, 423–24 (Tex. 1995); see also Stutes v. Samuelson,

180 S.W.3d 750, 753 (Tex. App.—Fort Worth 2005, pet. denied)

(explaining that a physician-patient relationship “is created when

professional services are offered and they are accepted by another”). The

relationship must be contractual, consensual, and voluntary, but it “does

not require the formalities of a contract.” St. John, 901 S.W.2d at 424.

A patient may, of course, expressly agree to accept a physician’s

professional services by, for example, signing a consent-to-treatment

form. See Bioderm, 426 S.W.3d at 759 (citing evidence that claimant

signed a consent-to-treatment form as proof that claimant was

physician’s patient); see also Rio Grande Valley Vein Clinic, P.A. v.

Guerrero, 431 S.W.3d 64, 65 (Tex. 2014) (per curiam) (noting that

claimant “completed forms for medical history, informed consent, and

medical information disclosure, indicating she was a patient”). Gaytan

argues, and the court of appeals agreed, that the undisputed fact that

22
she does not recall providing any such forms before receiving treatment

at the Medical Spa conclusively establishes that she never consented to

receive Dr. Yarish’s professional services. 627 S.W.3d at 351–52. But

even in the absence of any such express indication, the relationship may

be implied through conduct and circumstances demonstrating the

parties’ agreement. St. John, 901 S.W.2d at 423–24; see also Stutes, 180

S.W.3d at 753 (“The implied contractual relationship may arise from

facts and circumstances indicating there was a mutual intention to

contract.”). 14

Similarly, Gaytan argues, and the court of appeals agreed, that

the undisputed fact that she never saw or received treatment from Dr.

Yarish conclusively establishes that she never consented to receive his

professional services. See 627 S.W.3d at 351–52. But a patient need not

interact directly with or have physical contact with the physician for the

relationship to exist. See St. John, 901 S.W.2d at 424 (“The fact that a

physician does not deal directly with a patient does not necessarily

14See also Childs v. Weis, 440 S.W.2d 104, 106–07 (Tex. Civ. App.—
Dallas 1969, no writ) (“The relation of physician and patient is contractual and
wholly voluntary, created by agreement, express or implied.”); Estrada v.
Mijares, 407 S.W.3d 803, 807 (Tex. App.—El Paso 2013, no pet.) (“It is only
with the physician’s express or implied consent that the physician-patient
relationship is created.”).

23
preclude the existence of a physician-patient relationship.”); see also

Lection v. Dyll, 65 S.W.3d 696, 704 (Tex. App.—Dallas 2001, pet. denied)

(“[P]hysical contact between a doctor and patient is not necessary to

create a physician-patient relationship.”). In Bioderm, for example, we

held that a claimant who received laser-hair-removal treatments from a

physician-owned skin-care facility was the physician’s patient even

though she did not meet with the physician until after she received the

treatments that allegedly burned and scarred her legs. Bioderm, 426

S.W.3d at 756, 759 n.9; see Guerrero, 431 S.W.3d at 66 (“Even if, as

Guerrero now claims, a nurse performed the procedure, this does not

prevent the existence of a physician-patient relationship.”). What

matters is the physician’s express or implied agreement to provide, and

the patient’s express or implied agreement to accept, the physician’s

“professional services.” St. John, 901 S.W.2d at 423.

We conclude that this record establishes that Dr. Yarish offered,

and Gaytan agreed to receive, his professional services, and Gaytan thus

became his patient. According to Gaytan, she went to the Medical Spa

“to seek cosmetic skin treatments to address acne on [her] back and

face.” The Medical Spa, which Dr. Yarish “owns and operates,” is “in the

business of providing surgical and non-surgical cosmetic

24
improvements.” Gaytan received treatments from Gutzman, who was an

aesthetician employed at the Medical Spa. Instead of improving her

skin, the treatments caused scarring and discoloration because the

“Defendants”—including Dr. Yarish—failed to properly evaluate her

skin’s condition, assess her medical condition, instruct her to suspend

use of a skin cream before the treatments, determine the effect the

treatments would have on her skin, and prepare her skin for the

treatments and adjust them to her skin. And Dr. Yarish in particular

failed to “supervise and evaluate” the treatments and negligently hired,

trained, and retained Gutzman.

These facts conclusively establish that Gaytan became Dr.

Yarish’s patient. By seeking treatments from an employee at a medical

spa Dr. Yarish owned and operated, she necessarily sought and agreed

to receive his professional services. Such services, including

“nonsurgical medical cosmetic procedures,” need not be performed by

the physician personally, but a physician who provides them indirectly

through another is ultimately responsible for the patient’s safety and for

ensuring that the person who provides them on the physician’s behalf is

appropriately trained and supervised. See 22 TEX. ADMIN. CODE

§ 193.17(d). Gaytan alleges that Dr. Yarish negligently failed in this

25
regard and seeks to hold him responsible, but in the absence of a

physician-patient relationship, Dr. Yarish would have no duty to do any

of the things she alleges he negligently failed to do. See St. John, 901

S.W.2d at 423 (“[T]he duty to treat the patient with proper professional

skill flows from the consensual relationship between the patient and

physician, and only when that relationship exists can there be a breach

of a duty resulting in medical malpractice.”). By alleging that Dr. Yarish

negligently caused her injuries and seeking to hold him legally liable for

that conduct, Gaytan necessarily concedes that she was Dr. Yarish’s

patient.

B. Medical care or treatment

Having concluded that the claims asserted in this case are claims

made by a patient against her physician and health care providers, we

must still determine whether the claims complain of “medical care or

treatment” to decide whether they constitute health care liability

claims. TEX. CIV. PRAC. & REM. CODE § 74.001(a)(10). Although the Act’s

broad definition of the phrase “health care liability claim” provides an

“expansive application,” it does not encompass “circumstances where

the conduct of which a plaintiff complains is wholly and conclusively

inconsistent with, and thus separable from, the rendition of” medical

26
care or health care, even when the claimant is a patient who sues her

physician or health care provider. Loaisiga, 379 S.W.3d at 256–57. 15

In light of the Act’s broad definitions, we held in Loaisiga that it

“essentially creates a presumption” that a patient’s claim against her

physician or health care provider complains of “medical care or

treatment” and thus constitutes a health care liability claim if it is based

on “the defendant’s conduct during the patient’s care, treatment, or

confinement.” Loaisiga, 379 S.W.3d at 256; see also Weems, 575 S.W.3d

at 363; Guerrero, 431 S.W.3d at 65; Bioderm, 426 S.W.3d at 756. When—

as here—the presumption applies, the burden shifts to the claimant to

rebut it by showing that her claims are not based on the defendant’s

“departure from accepted standards of medical care or health care.”

Bioderm, 426 S.W.3d at 759–60 (quoting Tex. W. Oaks, 371 S.W.3d at

179–80). To decide whether the claimant has met that burden, we “first

determine whether expert medical or health care testimony is needed to

15 For example, a patient’s “claim against a medical or health care
provider for assault is not [a health care liability claim] if the record
conclusively shows that (1) there is no complaint about any act of the provider
related to medical or health care services other than the alleged offensive
contact, (2) the alleged offensive contact was not pursuant to actual or implied
consent by the plaintiff, and (3) the only possible relationship between the
alleged offensive contact and the rendition of medical services or healthcare
was the setting in which the act took place.” Loaisiga, 379 S.W.3d at 257.

27
establish the requisite standard of care and breach.” Bioderm, 426

S.W.3d at 760. If expert testimony is required, the claim is a health care

liability claim. Id. 16

1. The necessity of expert testimony

We held in Bioderm that a claimant who alleged injuries resulting

from the negligent use of a laser-hair-removal device asserted health

care liability claims because the device “is a regulated surgical device,

which may only be acquired by a licensed medical practitioner for

supervised use in her medical practice,” and “the proper operation and

use of this regulated surgical device requires extensive training and

experience.” 426 S.W.3d at 761–62. In this case, the court of appeals

distinguished Bioderm and held that expert testimony is not required

because “Gaytan has not alleged damages from the use of a medical

device” or any device “that could only be acquired by a medical

professional in a medical practice.” 627 S.W.3d at 351–52.

16 See also Weems, 575 S.W.3d at 366 (“The necessity of expert testimony
to prove or refute the merits of a claim against a physician or health care
provider is sufficient to establish that the claim is a health care liability
claim.”); Guerrero, 431 S.W.3d at 66 (holding claimant “has not rebutted this
presumption because expert health care testimony is necessary to prove or
refute the merits of her claim”); Tex. W. Oaks, 371 S.W.3d at 182 ( “[I]f expert
medical or health care testimony is necessary to prove or refute the merits of
the claim against a physician or health care provider, the claim is a health care
liability claim.”).

28
 But we did not hold or suggest in Bioderm that expert testimony

is required only when the claims are based on the use of such a device.

The involvement of the device required expert testimony in Bioderm

because the proper use of the device is “not within the common

knowledge of laypersons,” who “cannot be expected to understand

whether” the defendant’s use of the device in that case was improper.

426 S.W.3d at 761–62. The proper use of a regulated medical device, of

course, is not the only topic that falls outside “the common knowledge of

laypersons.” See, e.g., Diversicare, 185 S.W.3d at 851 (holding that

expert testimony was required on “the ability of patients in weakened

conditions to protect themselves” and “whether a potential target of an

attack in a healthcare facility should be better protected and by what

means” because such information “is not within the common knowledge

of the general public”); Garland Cmty. Hosp., 156 S.W.3d at 546 (holding

that a claim that hospital negligently credentialed a physician required

expert testimony because such claim “involves a specialized standard of

care”).

As we have explained, Gaytan alleges that Gutzman negligently

administered a course of skin treatments that included “L.J. acne

treatment, L.J. skin pen, L.J. phototherapy acne treatment, skin pen

29
spot treatment, microdermabrasion, and L.J. VI peel treatment.”

Nothing in the record establishes or suggests that the nature of and

standards for the proper administration of these treatments fall “within

the common knowledge of laypersons.” 17

17 From what we can tell from public sources outside the record,
SkinPen is an “FDA-cleared microneedling device” used for “combatting the
appearance of wrinkles of the neck and facial acne scars.” SkinPen Treatment
Get Started, https://skinpen.com/skinpen-treatment-get-started/ (last visited
Feb. 21, 2022); see 21 CFR § 878.4430(a) (“A microneedling device for aesthetic
use is a device using one or more needles to mechanically puncture and injure
skin tissue for aesthetic use.”). SkinPen’s website states that, for the patient’s
“safety and protection, SkinPen is available only through a physician.”
SkinPen Frequently Asked Questions, https://skinpen.com/faq-skinpen/ (last
visited Feb. 21, 2022); see U.S. FOOD & DRUG ADMINISTRATION, DE NOVO
CLASSIFICATION REQUEST FOR SKINPEN PRECISION SYSTEM, DEN160029
(2016), available at https://www.accessdata.fda.gov/cdrh_docs/reviews/DEN16
0029.pdf (“The sale, distribution, and use of the SkinPen Precision System is
restricted to prescription use . . . .”).
Phototherapy, or light therapy, involves the use of various lasers to
treat acne. See AMERICAN ACADEMY OF DERMATOLOGY ASSOCIATION, Laser
and Lights: How Well Do They Treat Acne?, https://www.aad.org/public/diseas
es/acne/derm-treat/lasers-lights (last visited Feb. 21, 2022). Some “visible-light
LED devices” are FDA-approved for at-home use. Id. At-home lasers “are less
powerful than the ones a dermatologist uses.” Id.
Microdermabrasion involves the use of a handheld device to remove the
top layer of skin to, among other things, treat acne and acne scars. See
AMERICAN SOCIETY OF PLASTIC SURGEONS, What is Microdermabrasion?,
https://www.plasticsurgery.org/cosmetic-procedures/microdermabrasion (last
visited Feb. 21, 2022). Microdermabrasion “kits” are available for at-home use,
but dermatologists perform a more intense microdermabrasion in-office. See
AMERICAN ACADEMY OF DERMATOLOGY ASSOCIATION,
Microdermabrasion: Overview, https://www.aad.org/public/cosmetic/age-spots-
marks/microdermabrasion-overview (last visited Feb. 21, 2022).
VI Peels are “Medium-Depth” chemical peels. VITALITY INSTITUTE,
What is a Chemical Peel?, https://vipeel.com/pages/chemical-peel (last visited
Feb. 21, 2022). A chemical peel is “a cosmetic treatment used to eliminate

30
 Moreover, Gaytan alleges that the defendants failed to “properly

evaluate” her skin condition “pursuant to established standards of

dermatological care,” failed to “properly assess, document, and/or

request” her medical history, should not have administered “abrasive

dermatological treatment” when she “was actively using a tretinoin

cream,” should not have administered laser treatment without first

determining its effect on Gaytan’s “ethnic skin,” failed to properly

prepare her “ethnic skin to safely accept laser treatment,” and failed to

properly “adjust” the laser treatment so that it could be safely applied

to her skin. The proper and applicable standards of “dermatological

care,” reliance on medical histories, risks involving the use of tretinoin

cream, and proper adjustments of a laser-treatment device, as well as

whether defendants’ conduct fell below those standards, are all matters

wrinkles, blemishes, etc., in which an acid is applied to the face . . . causing a
layer of skin to peel off.” Chemical peel, DICTIONARY.COM,
https://www.dictionary.com/browse/chemical-peel (last visited Feb. 21, 2022).
“VI Peel Chemical Peel may only be purchased and administered by a medical
professional.” VITALITY INSTITUTE, VI Peel, https://vipeel.com/collections/vi-
peel (last visited Feb. 21, 2022).
Of course, we have not sought to verify the accuracy or credibility of
these nongovernmental resources, and we do not rely on or vouch for them
here. Our point in citing them is simply to demonstrate that the determination
of the nature of these and similar treatments and whether they are properly
administered to any particular patient requires something other than
“common knowledge.”

31
that require expert testimony; indeed, it “would blink reality” to

conclude otherwise. Tex. W. Oaks, 371 S.W.3d at 182.

2. Inseparable part of the rendition of health care

Finally, we conclude that Gaytan asserts health care liability

claims even if expert testimony were not required. The necessity of

expert testimony prevents the claimant from rebutting the Act’s

presumption, but depending on the “totality of the circumstances,” a

claimant might not rebut the presumption even when expert testimony

is not required. Bioderm, 426 S.W.3d at 760. 18 In particular, we have

held that a claim constitutes a health care liability claim when the

conduct complained of is an “inseparable or integral part of the rendition

of health care.” Tex. W. Oaks, 371 S.W.3d at 180; see also Diversicare,

185 S.W.3d at 848 (“A cause of action alleges a departure from accepted

standards of medical care or health care if the act or omission

complained of is an inseparable part of the rendition of medical

services.”).

18 See also Weems, 575 S.W.3d at 366 (holding claimant asserted health
care liability claims “[e]ven if expert testimony were not ultimately required to
prove his claims”); Tex. W. Oaks, 371 S.W.3d at 182 (“[E]ven when expert
medical testimony is not necessary, the claim may still be a[ health care
liability claim].”).

32
 We conclude that all of the defendants’ conduct about which

Gaytan complains is inseparable from the medical and health care the

defendants provided. See Marks, 319 S.W.3d at 664 (holding the

assembly and maintenance of a patient’s hospital bed is “an integral and

inseparable part of the health care services provided” to the patient);

Diversicare, 185 S.W.3d at 849 (holding the supervision of a patient and

another patient who assaulted her was “inseparable from the health

care and nursing services provided to her”); Garland Cmty. Hosp., 156

S.W.3d at 546 (holding that a hospital’s conduct in credentialing a

physician is “inextricably intertwined with the patient’s medical

treatment and the hospital’s provision of health care”).

Despite Gaytan’s careful omission of any “medical” references in

her affidavit and second-amended petition, the professional services Dr.

Yarish provided to Gaytan through Gutzman and the Medical Spa

involved “medical” care and treatment. See TEX. CIV. PRAC. & REM. CODE

§ 74.001(a)(10). Under Texas law, “nonsurgical medical cosmetic

procedures” constitute “the practice of medicine.” 22 TEX. ADMIN. CODE

§ 193.17(a). Physicians may delegate the provision of such services to a

qualified and properly trained nonphysician if the physician ensures

that certain conditions are satisfied. See TEX. OCC. CODE § 157.001(a)

33
(authorizing physicians to delegate “any medical act” and listing

conditions for such delegations); 22 TEX. ADMIN. CODE § 193.17

(authorizing physicians to delegate “nonsurgical medical cosmetic

procedures” and listing conditions for such delegations). A physician

who fails to ensure that the conditions are satisfied may violate the

Medical Practice Act and be liable for any resulting harm, see TEX. OCC.

CODE § 157.001(b), but that failure does not transform the services into

something other than the practice of medicine.

Texas statutes and regulations do not define “nonsurgical medical

cosmetic procedures,” other than to say that they include but are “not

limited to the injection of medication or substances for cosmetic

purposes, the administration of colonic irrigations, and the use of a

prescription medical device for cosmetic purposes.” 22 TEX. ADMIN. CODE

§ 193.17(b)(3). But the ordinary meanings of those terms would

encompass the course of treatment about which Gaytan complains.

Gaytan asserts that she sought the treatments for acne, and not for any

“disease, disorder or injury,” but acne is a disease. See Acne, THE

AMERICAN HERITAGE STEDMAN’S MEDICAL DICTIONARY (2002) (“An

inflammatory disease of the sebaceous glands and hair follicles of the

skin that is marked by the eruption of pimples or pustules, especially on

34
the face.”). 19 And she sought those treatments not from a beauty salon

or similar establishment but from a physician-owned “medical spa,”

which by definition offers medical services that must be performed or

supervised by a licensed physician. 20 To the extent some of the conduct

19 See also Acne, DICTIONARY.COM, https://www.dictionary.com/browse/
acne (“[A]n inflammatory disease of the sebaceous glands, characterized by
comedones and pimples, especially on the face, back, and chest, and, in severe
cases, by cysts and nodules resulting in scarring.”).

20 See THE AMERICAN MED SPA ASSOCIATION, Frequently Asked
Questions about Medical Spas and Medical Spa Treatments,
https://www.americanmedspa.org/page/MedSpaFAQ (last visited Feb. 21,
2022) (“The American Med Spa Association defines a medical spa as a hybrid
between an aesthetic medical center and a day spa[] with four core elements:
(1) the provision of non-invasive (i.e. non-surgical) aesthetic medical services;
(2) under the general supervision of a licensed physician; (3) performed by
trained, experienced and qualified practitioners; (4) with onsite supervision by
a licensed healthcare professional.”); Lauren Numeroff, Playing Doctor: The
Dangerous “Medi-Spa” Game Without Rules, 17 J.L. & POL’Y 653, 653 n.3
(2009) (quoting Juliette Fairley, Spas With a Twist, TIME MAG., Feb. 9, 2004,
§ Inside Business/Beauty, at A13) (“Medi-spas . . . differ from day spas in that
they have a doctor on staff.”); AMERICAN SOCIETY OF PLASTIC SURGEONS,
“American Society of Plastic Surgeons Guiding Principles: Supervision of Non-
Physician Personnel in Medical Spas and Physician Offices,”
https://www.plasticsurgery.org/Documents/Health-Policy/Principles/principle-
2011-supervision-personnel-medi-spa.pdf (“The International Medical Spa
Association provides the following definition of a medical spa: ‘a facility that
operates under the full-time, on-site supervision of a licensed health care
professional. The facility operates within the scope of practices of its staff, and
offers traditional, complementary, and alternative health practices and
treatments in a spa-like setting. Practitioners working within a medical spa
will be governed by their appropriate licensing board, if licensure is
required.’”); THE AESTHETICS SOCIETY, “Putting the medical end of your
medispa under the microscope,” June 17, 2013,
https://www.surgery.org/consumers/plastic-surgery-news-briefs/putting-
medical-medispa-microscope-1051338 (“Medical spas typically offer Botox,

35
about which Gaytan complains did not independently constitute the

provision of medical care or health care, we conclude that all of the

conduct was part of and was inseparable from the “course of treatments”

Gaytan sought and received. Because that course of treatment

constituted the provision of medical care and health care, Gaytan has

failed to rebut the presumption that her claims constitute health care

liability claims under the Act.

V.
Disposition

We hold that the Texas Medical Liability Act’s expert-report

deadline did not prohibit Gaytan from amending her petition in

response to the defendants’ dismissal motion. But even considering her

amended petition, Gaytan’s claims against the defendants constitute

health care liability claims subject to the Act’s expert-report

requirements. Because Gaytan failed to serve an expert report before

the Act’s 120-day deadline, her claims must be dismissed. Because the

Act requires the trial court to award defendants their reasonable

attorney’s fees and costs, see TEX. CIV. PRAC. & REM. CODE § 74.351(b),

we remand the case to the trial court for further proceedings.

facial peels, laser skin treatments and other minimally invasive cosmetic
procedures.”).

36
 Jeffrey S. Boyd
Justice

OPINION DELIVERED: February 25, 2022

37